Objecting Nurse Fired
10 years of litigation follows dismissal
Orange County, California, U.S.A.
June, 1994
Introduction
The case of nurse Karen Kelly illustrates the kind of exhausting litigation that conscientious objectors may encounter when pursuing wrongful dismissal claims against large employers with 'deep pockets.' Her story is told in the following news reports filed at critical points as the case proceeded. [Administrator]- 2002: Kelly Case Ends in Non-suit
- 2004: Mockery and Harassment
Kelly Case Ends in Non-suit
Lifeline, Vol. XI, No. 1 (Spring, 2002)
Life Legal Defense
Foundation
Reproduced with permission
Nurse Karen Kelly’s lawsuit against Orange County ended abruptly when federal judge Terrence Hatter granted the County’s motion for directed verdict just after Karen’s attorneys, Tom and Liz Nigro, finished presenting her case at trial. Granting the motion prevented the case from going to the jury, which appeared to view Karen’s case more favorably than the judge did.
In 1995, Karen sued Orange County for retaliation and wrongfully firing her from her job as a nurse at juvenile facilities because she refused to schedule abortions and provide offensive Planned Parenthood-style “safe-sex” instruction to children. The case was made more difficult by the fact that, when fired, Karen was still within the probationary period of a new employee; essentially, the County could fire her for no reason, although not for a discriminatory reason.
The trial began on April 2, when Judge Hatter informed the attorneys that each side would have only ten hours to present its case to the jury, including, but not limited to opening statements, direct examination of witnesses, cross-examination of opposing witnesses, and closing arguments. The parties had estimated that the trial would take at least three weeks, so the court’s order slashed this time by about75%.While each side had the same allotment of time, this superficially equitable handicapping failed to take into account that only one party, Karen, had the burden of proof. And the result of that imbalance was made clear when the judge granted the County’s motion for nonsuit on the grounds that Karen had failed to present enough evidence to support her case.
Karen testified that after she informed her supervisor that she could not perform duties which violated her religious beliefs, the supervisor, rather than making a reasonable accommodation as required by law, embarked on a course of harassment designed to break Karen down. This included subjecting Karen to the taunts of co-workers, repeatedly threatening to fire her if she continued to refuse, and finally transferring her to another shift at a different facility, thus imposing a severe strain on Karen that led to medical problems. At the second facility, Karen was not properly oriented for her different and increased job responsibilities, nor did she have the specialized training required for the position, thus reinforcing the point that the transfer was intended to cause Karen to fail and give in to her employers’ demands or be terminated.
The jury also heard from a highly-qualified expert witness who testified that Karen’s work was within the standard of care expected of nurses, and that, in the areas the County specifically criticized after Karen’s forced transfer, her work performance was at a level to be expected based on her limited training for the new position.
Because of the severe time limits imposed by the judge, Karen’s testimony was shortened, as was that of her witnesses. In spite of the time limits, the court refused to allow the use of deposition testimony of one of Karen’s supervisors who recently became unavailable to testify at trial, but who had testified: “I don’t care what her beliefs are, she was expected to do her job. ”Thus, the most significant direct evidence of discriminatory animus was excluded at trial. Nonetheless, the six-man, one-woman jury appeared sympathetic to her plight, to the point that some were crying during her testimony. The judge, however, appeared to have the opposite reaction.
Finally, on April 10, when Tom Nigro rested his case with less than an hour remaining for both cross-examining the last defense witnesses and his closing argument, the County moved that the case be dismissed on the grounds that Karen had failed to meet her burden of showing that the County had fired her because of her religious beliefs.
The court held there was no question regarding the sincerity of Karen’s religious beliefs, nor that Karen was a probationary employee who could be fired for no reason, but not for a discriminatory reason. However, the court found she had produced insufficient evidence that she was fired for a discriminatory reason.1
“I believe we put on a strong case in spite of the time limitation,” said Liz Nigro. “We were disappointed with several of the court’s evidentiary rulings, and shocked when he granted the County’s motion for directed verdict, taking the case away from the jury. After litigating this case for five years, it would have been easier for us, and Karen, to accept a defeat from the jury.” Karen, the Nigros, and LLDF attorneys are evaluating the prospects of an appeal.
Notes:
1 Ironically, in a similar case in Santa Ana, Karen Kelly v. Universal Care, the federal district court judge denied the defendant’s motion for summary judgment, holding that Karen had provided sufficient evidence of discriminatory intent. This matter was recently settled under confidential terms.Mockery and Harassment
Ten-year Struggle of Pro-Life Nurse for Conscience
Los Angeles
Lay Catholic Mission, 2004
(Now
California Catholic Daily)
Reproduced with permission
"She's looking for a two-out rally like the Boston Red Sox," observed attorney Thomas Brejcha of the Thomas More Law Center. Brejcha was referring to his client, Karen Kelly, who on November 3 asked the United States Supreme Court to review her case which stemmed from losing her job as a registered nurse at Orange County's juvenile hall ten years ago. Kelly lost her job because she refused to write out referrals to abortion clinics for wards of the Orange County juvenile hall or to teach them about contraceptives.
In 1994, Kelly was a nurse with the Orange County juvenile court. As a single mother of a young daughter, it was in Kelly's financial interest not to challenge her superiors on whether or not she could participate in abortion referrals or teaching wards about contraceptives. Kelly says that her Catholic faith compelled her to do otherwise.
After Kelly protested the job duties she was given that were contrary to her faith, she was transferred to the Orangewood Home for Abused and Neglected Children. Kelly pointed out to this reporter that this move was not an accommodation to her objections but was rather a transfer to a different job site. At Orangewood, Kelly was again called upon to refer wards to abortion and contraceptive services. Kelly said that when she told her supervisor that she did not want to participate in these activities, she was met with derision. "I was told that they [wards of juvenile hall] are the scum of the earth."
The transfer to Orangewood proved to be difficult for Kelly. She was assigned the night shift, which made caring for her then two-year-old daughter difficult. Kelly's fellow nurses were also scornful of her. On June 8, 1994, Kelly was fired from her job. Kelly then filed a complaint with the United States Equal Employment Commission. She claims that the county forged a document that showed she was incompetent, in spite of the fact that she had been given favorable reviews while at Orangewood.
Life Legal Defense Foundation filed a federal civil rights lawsuit against the county of Orange on behalf of Kelly for wrongful termination and violation of Kelly's civil rights. The lawsuit went before Judge Terry Hatter. Judge Hatter closed the trial before it went before a jury.
"Judge Hatter's court reporter of 15 years resigned after my case went before him," Kelly said. She noted that her case is very important because nurses are being forced to push abortion on people who are wards of the state. "It wasn't Pearl Harbor, it wasn't 9/11, it was January 22, 1973 that changed everything. This is akin to Hitler getting the nurses to do the killing." As part of the discovery, the county of Orange took Monsignor Lawrence Baird's deposition to see if writing a referral for an abortion would be contrary to the Church's teachings. "The county also called him to testify at trial about the Church's teaching on abortion." Kelly said that his testimony corroborated her contention; but, in spite of the testimony, Judge Hatter unexpectedly decided to end the trial.
Kelly said that she felt her attorneys may have brokered a deal with the county to settle the case without her consent. "My own attorneys told me not to take it any further." At this point, Life Legal Defense decided not to continue to represent Kelly because, she claimed, they said her case "was hopeless." Dana Cody, executive director of Life Legal Defense, said that her group did not say Kelly's case was hopeless, but it was their belief that Kelly would not prevail at the ninth circuit federal court of appeal. "We have to be careful with our donors' money," Cody said to this reporter. "We hope we are wrong, Cody said about Kelly's chances.
Not to be deterred, Kelly appealed Hatter's decision to the ninth circuit court of appeal, representing herself. Preparing her own briefs, Kelly outlined the reasons why Hatter had erred in his ruling.
Subsequently, the court appointed an attorney for Kelly. "I got Peter Stris, a Harvard Law school graduate," she said. "Two days prior to the oral arguments, Stris said his girlfriend would do the oral arguments." Kelly said she was upset with the representation. The argument that the county really did not accommodate her beliefs by sending her to Orangewood (where she was still required to make abortion and contraception referrals) was left out. Kelly said that she had contacted the Thomas More Law Center several years before her case went to the ninth circuit. "At the time, the Thomas More Law Center said that since I had attorneys they could not represent me. They also said if I ended up without an attorney to call them." When the ninth circuit upheld Hatter's actions this past summer, Kelly decided to call the Thomas More Law Center again and ask for help in petitioning the United States Supreme Court to intervene.
Brejcha said that he finds Kelly's case viable because "the ninth circuit emphasized that the economic factors were favorable." The ninth circuit reasoned that since Kelly had not lost her job but had been transferred to a comparable job, she had not suffered an economic loss. Another Thomas More Law Center attorney, Thomas Brucetta, said that Kelly did suffer economic hardships. "She was forced to work the night shift, and, as a single mother, that was economically difficult. She also suffered mockery and harassment. The court didn't weigh these things at all." Brucetta said that other circuits, "notably the first, tenth and eleventh circuits have a more liberal interpretation of Title 7 of the Civil Rights Act. We think this case is a compelling opportunity for the Supreme Court to intervene in these conflicting opinions."
Audrey Cochran of Nurses for Life said it was important for nurses to be allowed to follow their moral values in their jobs. "Nurses shouldn't just follow orders but should be allowed to follow their consciences. A large number of women who have had abortions later suffer trauma. There is a higher of incidence of suicide and substance abuse among women who have had abortions than among those who haven't. Nurses should not be required to participate in something that harms women."